Madhya Pradesh High Court
Smt. Aarti vs Sachin on 9 May, 2019
HIGH COURT OF MADHYA PRADESH, JABALPU
SINGHLE BENCH : HON'BLE SHRI JUSTICE V.P.S.CHAUHAN
Cr.R.No.3228 /2018
Smt.Arti and another
VERSUS
Sachin
Shri Subodh Tamrakar, learned counsel for the applicants.
Shri Ram Kripal Mishra, learned counsel for the
respondent.
O R D E R
(09/05/2019) The applicants have filed this revision under Section 397 read with Section 401 of Cr.P.C. against the respondent being aggrieved by the order dated 18/5/2018 passed in M.J.C. No.69/2017 by Principal Judge, Family Court, Raisen whereby Family Court dismissed the application filed under Section 125 of Cr.P.C. by the applicants for getting monthly maintenance allowance from the respondent.
2. The facts giving rise to this revision, in short, are that applicant No.1 got married with respondent and applicant No.2 born out of that wedlock. It is alleged that respondent beat applicant No.1 for not fulfilling the demand of dowry. Applicant No.1 is living with her parents along with applicant No.2 as the applicants have not been maintained by the respondent, hence she filed an application under Section 125 of Cr.P.C. for getting monthly maintenance allowance. Learned Family Court vide order dated 18/05/2018 dismissed the application filed by the applicant.
3. Being aggrieved by the impugned order the applicants have filed this criminal revision on the ground that learned Family Court has not appreciated the evidence properly. The applicant No.1 is taking due care of her younger baby i.e. applicant No.2. The respondent is serving in Nagar Nigam, Bhopal earning Rs.50,000/- per month. Previously applicant No.1 was working as Aaganwadi Worker but since 2015 she has been removed from the service, therefore, she is not having any means of earning. The respondent is capable to maintain her and her daughter. The applicants in this revision have prayed for enhancement of maintenance allowance instead of setting aside of the impugned order and grant of maintenance amount.
4. Learned counsel for the respondent submits that both the parties are infected with grievous disease. Respondent facilitated the whole treatment of the applicant and bore all expenses and he is also a patient of AIDS not physically fit to earn the money. The applicant No.1 without any sufficient cause is living with her parents, therefore, she is not entitled for any maintenance. The applicant also filed an application under Section 12 of Protection of Woman from Domestic Violence Act in which learned JMFC Court already ordered to pay Rs.2,000/- per month to applicant No.1 and Rs.2,000/- per month to applicant No.2, however, she again filed an application under Section 125 of Cr.P.C. for seeking monthly maintenance allowance, hence, prays for dismissal of the petition.
5. Having heard learned counsel for both the parties. Record of Court below i.e. M.J.C. No.69/2017 has been received and perused statement of both the parties.
6. Applicant No.1 recorded her statement before the trial Court and in para-5 she admitted that at the time of marriage there was no dispute between both the parties. She gave birth to a child at Sultaniya Hospital, Bhopal and after that, respondent took her along with baby at his home and after staying sometime, she again came to her parents. She also stated that at that time no dispute arose between them. In her examination-in- chief she nowhere stated that respondent had beaten her. She only stated that respondent and his parents said that she is not so good looking and asked to bring Rs.two lakh and motorcycle and after that they expelled her from the matrimonial house. Thereafter no one came to take her back to matrimonial house. In cross-examination in para-7 she stated that she is ready to go with the respondent if anyone take guarantee of her safety. She again admitted that Chairman of the society also directed her to go with respondent but she said that if anyone takes guarantee of her safety, then she is ready to go with the respondent. She has not stated that what happened with her when she was in matrimonial house, in turn, she stated in para-9 that respondent took her to Dr. Usha Chouksey for treatment and she also stated that when she was infected with grievous disease respondent facilitated her treatment at Hamidiya Hospital. This statement goes to show that the respondent is taking proper care of applicant No.1 and both are infected with a grievous disease i.e. AIDS. Respondent categorically denied in para-7 of his statement that he is working in Nagar Nigam Bhopal and earned Rs.50,000/- per month, however, admitted that he is having three storied house at Bhopal but applicant No.1 admitted in her statement that she got appointment as an Aaganwadi worker.
7. Learned Family Court after appreciation of evidence not found fit both the applicants for getting maintenance allowance. This Court is of the view that it is admitted by the respondent that applicant No.2 born out of the said wedlock. It is not proved that applicant No.1 at the time of filing of application under Section 125 of Cr.P.C. was in job and earned money. No doubt there is a strained relations between the husband and wife but so far as applicant No.2 is concerned, she is entitled for monthly maintenance.
8. In view of aforesaid, the revision is partly allowed. The impugned order dated 18/05/2018 passed in M.J.C. No.69/2017 is set aside, so far as it relates to applicant No.2. Applicant No.1 is not entitled to get any maintenance monthly allowance because she is living separately without any sufficient cause but so far as applicant No.2-duathter is concerned, it is directed that respondent shall pay Rs.2,000/- per month to applicant NO.2 as monthly maintenance allowance. No order as to cost.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2019.05.10 11:33:33 +05'30'